If you were to put words in my mouth, Professor Huffman,(1) I would
fully expect the great environmental goddess in the sky to come down
here and strike me down as I speak. You should be comforted to know
that, whether I sit on your right or your left, I disagree with almost
everything you said. I also find myself troubled by one of Bill
Funk's statements. Bill claimed that if the government had to pay
for things it got "free," that might change the way we look at
environmental regulation.(2) My question is: doesn't that
presuppose the existence of development rights? Huffman is, of course,
right to suggest that we must have a definition of property rights
before we know what the government got free,(3) but his definition
assumes that development rights are essential property rights. That is a
theory that Anglo-American law has never accepted, and one that I have
argued elsewhere is inconsistent with life in the late twentieth
century,(4) although it might be appropriate for life on Mars.(5)

Jim Huffman's solution is, I think, very close to that of
Justice Scalia, which is to separate property notions from positive law
requirements contained in the South Carolina Beachfront Management Act
and other environmental and land use regulations. Their idea is to
decide rights on the basis of good sound, dependable, concrete property
law. That approach makes sense only if you don't understand
property law.

The relevant property law is the law of nuisance. Every first-year
law student learns that a nuisance is a substantial and unreasonable
interference with the use of another person's property or the
rights of the public.(6) What constitutes "substantial and
unreasonable" is highly uncertain and has always been highly
uncertain. Consult Morton Horowitz on the history of nuisance law;
people have always had their expectations disappointed because of
nuisance law.(7) Moreover, nuisance law includes, there is no question,
the background of statutes. What is substantial and unreasonable is a
reflection of what the Endangered Species Act,(8) or section 404 of the
Clean Water Act,(10) or the South Carolina Beachfront Management Act(10)
requires. There's no sharp separation between property law on the
one hand and environmental regulation on the other hand. That is simply
a false dichotomy.

Nuisance means harm. Why should only courts be in the business of
suggesting what is harmful? Why can't statutes, why can't
legislators declare harm? Legislatures have greater fact-finding
capabilities than courts. In fact, as Don Large pointed out, the old
cases, like Mugler,(11) Hadacheck,(12) and Miller v. Schoene(13) were
about statutory, not common law nuisances.(14) Those cases involved
changes effected by the legislature. It was intellectually dishonest for
Justice Scalia to have assumed otherwise.

As Bill Funk said, since Justice Scalia raised without answering
the "size of the property" issue, it's hard to know how
significant a case Lucas is.(15) My bet is that we're at the end of
what we will look back on as a transition era, where the Court was
fumbling around with basic concepts. We might date this transition era
from the 1987 takings trilogy,(16) especially the Nollan case, where the
Court announced that it was going to look more carefully at certain
kinds of regulation, and not give as much deference to certain kinds of
legislative findings.(17) Many people thought that Nollan was the
beginning of a rise of substantive due process in the property rights
area,(18) something which Professor Huffman has been advocating for
years.(19) That should remind students of constitutional law of the
Lochner era, when judges decided large social policy issues and reversed
legislative action on the basis of their notions of liberty and
contract.(20) Lochner and its progeny helped bring on a constitutional
crisis, you may recall.(21)

We seem to be heading toward a new era of close judicial scrutiny
in the name of property rights, especially since another case from the
1987 takings trilogy, the First English case,(22) makes money available
in takings cases. First English held that landowners may collect damages
for temporary takings.(23) There is no question that there is now an
active bar interested in arguing taking cases on contingent fees. And
there are a few people, like Richard Epstein - who wrote an amicus brief
in Lucas on which Justice Scalia relied heavily(24) - who are pushing
for a property rights revolution out of their vision of public
spiritedness.(25) We also have the Claims Court, which, as Bill Funk
mentioned, has taken a much more extreme view of the takings clause than
even Justice Scalia. (26) So, in the next few years, we're going to
have a lot of cases that will address the issues that the Lucas decision
didn't resolve, like the size of the property. When and if they
reach the Supreme Court, those cases will mark the end of this
transition era and will tell us just how big of a property rights
revolution is underway.

As for Lucas, the most sagacious opinion in the case was one that
the panelists have not mentioned yet, and that was Justice
Souter's.(27) He claimed that the Court should not have granted
certiorari, asking "What are we taking this case for?" In
Souter's view, the case's fundamental assumption - that
Lucas' land had no economic value after application of the
regulation - was highly unlikely.(28) In fact, all the other opinions -
Justice Kennedy's concurrence and the dissents of Justices Blackmun
and Stevens(29) - agree that it was improbable that there was no
economic value remaining. The land almost certainly had resale or use
value, apart from its development value. So why take this case,
especially a Supreme Court that has been extremely stingy about granting
standing to environmental plaintiffs?(30) I think Justice Souter had it
right; the key assumption on which the Court premised certiorari was a
flawed one.

I also have some problems with the history that the Court used in
Lucas. The first concern of a conservative Court, one would think,
should be the original intent of the Constitution's Framers. Jim
Huffman made a passing reference to originalism,(31) but the original
intent of the Framers was that compensation would be available only for
loss of possession, not for loss of value.(32) There is no evidence to
suggest before or after adoption of the Constitution that there existed
judicially mandated compensation for loss of value.(33) But Justice
Scalia in effect says that this history does not matter. He claims that
the relevant history does not begin until 1897, because in that year the
Fourteenth amendment made the Fifth Amendment's taking clause
applicable to the states.(34) This clever bit of historiography allows
Justice Scalia to maintain that takings clause history begins with the
twentieth century substantive due process era. This is hardly the
history of original intent, hardly the history a truly conservative
Court would employ.(35)

One of the more curious aspects of Justice Scalia's opinion
was the distinction he drew between the regulation of personalty and the
regulation of realty. The state may, according to Justice Scalia,
regulate personalty even to the point of eliminating all economic value
without transgression of constitutional limits because of the
state's "traditionally high degree of control over commercial
dealings."(36) The commercial nature of personalty which allows the
state to enact a new regulation making the property economically
worthless apparently does not characterize real property in the eyes of
the Lucas majority. While no one doubts that land use involves
non-economic concerns,(37) to intimate that the commercial nature of
personalty transactions distinguishes them from real estate transactions
seems fanciful. Personalty transactions are frequently inter-familial,
where commercial objectives are unlikely.(38) On the other hand, the
objectives of David Lucas, a land developer, were almost certainly
commercial in nature.(39) Yet Justice Scalia discounted these motives,
preferring a more idyllic, static, Jeffersonian notion of the purpose of
the realty. This willingness to embrace an anarchistic, eighteenth
century notion of the value of land, while at the same time dismissing
the original intent of the eighteenth century framers of the takings
clause,(40) makes the Lucas opinion seem to be a particularly
result-oriented one.

Perhaps the most disturbing aspect of the Lucas case is the
Court's willingness to second-guess the legislature. Justice Scalia
has placed a burden on legislatures that may be formidable, depending
upon how the Court eventually defines the loss of all value, because he
has disallowed the traditional judicial deference to legislative
findings isn't given.(41) Justice Scalia hints that there is a
fundamental right to develop property. That would be a curious result
because if there is a fundamental right to develop property, and there
are two landowners whose developments conflict, whose right is more
fundamental? It is odd to think of property as fundamental because
it's so unequally distributed.(42) In that sense, property is
inherently different from speech or religion, where individuals stand on
relatively the same footing. On the contrary, property is a reflection
of the social and economic inequities of past generations.(43) Present
inequities in its distribution are the source of numerous problems
confronting the nation and the world today. Any decision, like Lucas,
which suggests that the development plans of this generation's
property holders enjoy constitutional protection is likely to help
perpetuate inequities in the current distribution of property. Such a
decision might help to establish the Constitution as an unfortunate
restraint on the ability of environmental and land use regulation to
control the adverse effects of development.

In addition to signalling more exacting judicial scrutiny of
legislative regulation of land use, Lucas may also have authorized a
significant role for the U.S. Supreme Court in reviewing state Supreme
Court taking clause decisions. At first glance, because the Lucas Court
establishes state common law nuisance principles as an exception to
constitutional takings, it might seem that the state courts have
unfettered license to declare which land use projects enjoy
constitutional protection and which do not. This could lead to a
significant fracturing in takings clause law; one's constitutional
property rights might vary significantly from one state to the next,
depending on the state's common law background principles of
nuisance (or, more probably, the individual predilections of the local
judiciary).(44) Justice Scalia's opinion, however, did attempt to
restrain this "fifty points of light" approach to the takings
clause. In his last footnote, he wrote: "We stress that an
affirmative decree eliminating all economically beneficial uses may be
defended [by the state] only if an objectively reasonable application of
relevant precedents would exclude those beneficial uses in the
circumstances which the land is presently found."(45) This language
appears to promise Supreme Court review of state court interpretations
of state nuisance law to ascertain whether they constitute
"objectively reasonable application[s] of relevant
precedents." If so, Justice Scalia and his colleagues will have
established a federal law of property,(46) another surprising result
from a purportedly conservative Court.

The Lucas decision also continues Justice Scalia's assault on
legislative attempts to change the common law model of public and
private rights with respect to land and environmental regulation. In
Lucas, Justice Scalia resurrected common law nuisance as a paradigm for
takings jurisprudence. Only seventeen days earlier, in Lujan v.
Defenders of Wildlife, he limited Congress' ability to create
standing for citizens' groups that did not satisfy traditional
common law norms.(47) In Lucas, Scalia employed common law nuisance to
suggest that the takings clause creates a constitutionalized,
federalized notion of property rights. But Scalia's view may not be
the way of the future: Justice Kennedy's concurrence indicates
substantial uneasiness with the common law paradigm as the appropriate
line between public and private rights:

The Takings Clause does not require a static body of state property
law ... I agree with the Court that nuisance prevention accords with
most common expectations of property owners who face regulation, but I
do not believe this can be the sole source of state authority to impose
severe restrictions. Coastal property may present such unique concerns
for a fragile land system that the State can go further in regulating
its development and use than the common law of nuisance might otherwise
permit.(48)

This may be a truer reflection of the Court's real attitude
toward the common law paradigm than Justice Scalia's. If so,
legislatures will want to carefully scrutinize the chief reasons Justice
Kennedy voted to join the majority in overturning the South Carolina
statute: (1) the statute's purpose of promoting tourism did not
comport with traditional notions of preventing nuisance-like activities,
and (2) the South Carolina regulation singled out Lucas' and other
undeveloped properties for "the whole burden of the
regulation" after allowing other seemingly similarly situated properties to develop.(49)

In the final analysis, from a property lawyer's perspective,
Lucas is a flawed decision because it assumes that property rights
amount to development rights. Justice Scalia quotes Lord Coke for the
proposition that "[w]hat is the land but the profits
thereof.?"(50) The answer is: quite a bit. Most obviously, land
involves privacy as well as development rights.(51) And it is those
rights that the Supreme Court ought to be concerned about zealously
protecting from governmental regulation, not development rights like
those of Mr. Lucas'.(52) Property rights protecting private
autonomy are closer to the speech, religion, and association rights that
Americans hold as fundamental. They are all classic minority rights.
Development property rights, on the other hand, have never been regarded
as fundamental rights, probably because they involve one person
exercising economic power over others. Courts have, for most of the
twentieth century, allowed legislatures a relatively free hand to
regulate development property rights in the public interest. This is no
accident; development rights are well represented in the legislatures
and hardly need the protection of the judiciary for their existence.
Justice Scalia's unwillingness to recognize the critical
distinction between development property rights and privacy property
rights may be seen, some years hence, to be the Lucas opinion's
biggest failure.

(1.) See James L. Huffman, Lucas: A Small Step in the Right
Direction, 23 Envtl. L. 901, 906 (1993). (2.) William F. Funk,
Revolution or Restatement? Awaiting Answers to Lucas' Unanswered
Questions, 23 Envtl. L. 891, 892 (1993). (3.) Huffman, supra note 1, at
902. (4.) See Michael C. Blumm, Public Property and the Democratization of Western Water Law: A Modern View of the Public Trust Doctrine, 19
Envtl. L. 573, 599 n.108 (1989): Professor Huffman's static view of
property rights and his absolutist approach to the takings issue assumes
a world in which the public interest is simply the aggregate of those
fortunate enough to own land. This eighteenth century view of the world
not only would fail to produce just or efficient results in the late
twentieth century, it would also stifle recognition of the essential
public nature of natural resources allocation, substituting an
artificial, atomistic view of the world for one in which individual
landowner preferences are tempered by community values and collective
choice concerning resources in which all have a legitimate stake. See
also Michael C. Blumm, The Fallacies of Free Market Environmentalism, 15
Harv. J.L. & Pub. Pol'y 371, 389 (1992) ("The public
interest is not simply the aggregate of the existing preferences of this
generation's property owners"). (5.) I owe this observation to
Dan Farber who, while presenting a takings paper to the LL.M. Seminar at
Lewis and Clark a few years ago, suggested that Professor Huffman's
theory might well work for Martians, but he doubted its utility on this
planet. Farber subsequently published his paper which Justice Stevens
relied on in his dissent in Lucas. See Daniel A. Farber, Economic
Analysis and Just Compensation, 12 Int'l Reev. of Law & Econ.
175 (1992), cited in Lucas v. South Carolina Coastal Council, 112 S. Ct.
2917, 2922 n.5 (1992) (Stevens, J., dissenting). (6.) Restatement
(Second) of Torts [subsection] 821A-F (1977). (7.) Morton J. Horowitz,
The Transformation of American Law, 1780-1860, at 74-78 (1977). (8.) 16
U.S.C. [subsection] 1531-1544 (1988). (9.) 33 U.S.C. [section] 1344
(1988). (10.) 16 S.C. Code Ann. [subsection] 48-39-250 to -360 (Law.
Co-op. Supp. 1992). (11.) Mugler v. Kansas, 123 U.S. 623 (1887). (12.)
Hadacheck v. Sebastian, 239 U.S. 394 (1915). (13.) 276 U.S. 272 (1928).
(14.) See Donald W. Large, Lucas: A Flawed Attempt to Redefine the
Mugler Analysis, 23 Envtl. L. 883, 888 (1993). (15.) Funk, supra note 2,
at 893 (citing Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886,
2894 n.7. (1992)). Note, however, that while footnote 7 raises the
"size of the property" issue as if it were unresolved, the
Lucas decision does not overturn either Keystone Bituminous Coal Ass'n. v. Debenedictis, 480 U.S. 470, 496-502 (1987) (rejecting a
narrow view of the affected property by refusing to confine
consideration only to the two percent of the property subject to the
restriction, even though the state defined the support estate as a
distinct property interest), or Penn Central Transp. Co. v. City of New
York, 438 U.S. 104, 136-37 (1978) (rejecting a narrow view of the
affected property by refusing to confine consideration only to the
development rights in the airspace above the terminal, considering also
existing uses and transferable development rights, available to other
locations). See also Andrus v. Allard, 444 U.S. 51, 65-66 (1979)
(holding that "where an owner possesses a full bundle of property
rights, the destruction of one |strand' of the bundle is not a
taking because the aggregate must be viewed in its entirety"). In
Penn Central, the Court explained: |Taking' jurisprudence does not
divide a single parcel into discrete segments and attempt to determine
whether rights in a particular segment have been entirely abrogated. In
deciding whether a particular governmental action has effected a taking,
this Court focuses rather both on the character of the action and on the
nature of the interference with rights in the parcel as a whole - here
the city block designated as the |landmark site.' 438 U.S. at
130-31. Thus, despite Lucas' footnote 7, the Keystone, Penn
Central, and Andrus cases have all have resolved the "size of the
property" issue in favor of a broad view of the property. Until the
Court overturns these decisions, they are the law of the land. (16.) See
generally Donald Large, The Supreme Court and the Takings Clause: The
Search for a Better Rule, 18 Envtl. L. 3, 35-50 (1987). (17.) See Nollan
v. California Coastal Comm'n, 483 U.S. 825, 840-41 (1987). (18.)
See Robert A. Williams, Jr., Legal Discourse, Social Vision and the
Supreme Court's Land Use Planning Law: The Genealogy of the
Lochnerian Recurrence in First English Lutheran Church and Nollan, 59 U.
Colo. L. Rev. 427, 463 (1988). (19.) See, e.g., James L. Huffman, A
Coherent Takings Theory at Last: Comments on Richard Epstein's
Takings: Private Property and the Power of Eminent Domain, 17 Envtl. L.
153 (1986) (book review). (20.) Lochner v. New York, 198 U.S. 45 (1905).
(21.) See generally William E. Leuchtenburg, The Origins of Franklin D.
Roosevelt's "Court-Packing" Plan, 1966 Sup. Ct. Rev. 347.
(22.) First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304 (1987). (23.) Id. at 321. Interestingly,
ultimately there was no taking in First English. See First English
Evangelical Lutheran Church of Glendale v. County of Los Angeles, 210
Cal. App. 3d 1353, 1374 (1989), cert. denied, 493 U.S. 1056 1990).
(24.) See Brief of the Institute for Justice as Amicus Curiae in Support
of Petitioner, Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886
(1992) (No. 91-453), reprinted in 25 Loy. L.A. L. Rev. 1233 (1992).
(25.) See Richard A. Epstein, Takings: Private Property and the Power of
Eminent Domain (1985). (26.) See Funk, supra note 2, at 893. See also
Thomas Hanley, A Developers Dream: The United States Claims Court's
New Analysis of Section 404 Takings Challenges, 19 B.C. Envtl. Aff. L.
Rev. 317 (1991). (27.) Lucas v. South Carolina Coastal Council, 112 S.
Ct. 2886, 2925-26 (1992) (Souter, J., separate statement). (28.) Id.
(29.) See id. at 2902-03 (Kennedy, J., concurring); id. at 2908
(Blackmun, J., dissenting); id. at 2919 (Stevens, J., dissenting). (30.)
See infra note 47 and accompanying text. (31.) See Huffman, supra note
1, at 902. (32.) See Lucas, 112 S. Ct. at 2915 (Blackmun, J.,
dissenting). See also Mugler v. Kansas, 123 U.S. 623, 668-69 (1887).
(33.) See Stephen A. Siegel, Understanding the Nineteenth Century
Contract Clause: The Role of the Property-Privilege Distinction and
"Takings" Clause Jurisprudence, 60 S. Cal. L. Rev. 1, 76
(1986); William M. Treanor, Note, The Origins and Original Significance
of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J.
694, 711 (1985). (34.) See Lucas v. South Carolina Coastal Council, 112
S. Ct. 2886, 2900 n.15 (1992) (citing Chicago B. & Q.R. Co. v
Chicago, 166 U.S. 226 (1897)). (35.) Cass Sunstein has explained the
Relinquist Court's uneven approach to original intent by referring
to the Court's adherence to Burkean philosophy. According to
Sunstein, the Burkean approach of the Court is evident in (1) its
skepticism of legislative or judicial innovation as social engineering,
and its belief in stability as an independent good; (2) its emphasis on
tradition, and its willingness to test principles by experience, not
theoretical consistency; (3) its suspicion of theory, and its assumption
that the past has wisdom because it tests principles by individual
outcomes; and (4) its embrace of incrementalism, out of a fear that
unleashing of forces inattentive to the past will produce untoward
consequences. Cass R. Sunstein, Remarks at the Constitutional Law
Session of the Association of American Law Schools (Jan. 5, 1993). (36.)
Lucas, 112 S. Ct. at 2899. (37.) See generally Margaret J. Radin,
Property and Personhood, 34 Stan. L. Rev. 957 (1982). (38.) See
generally Elias Clark et al., Cases and Materials on Gratuitous
Transfers: Wills, Intestate Succession, Trusts, Gifts and Future
Interests 2 (2d ed. 1977) (estimating that of $100 billion of wealth
passing at death each year, less than nine percent is real estate and
indicating that there has been no systematic attempt to estimate the
overall dollar value of gratuitous transfers). See also Ray Andrews
Brown, The Law of Personal Property 13 (2D ed. 1955) (indicating that
distinctions in property law antedate "the development of our
modern commercial life"). (39.) See Lawrence Watters, Introduction
and Decision, 23 Envtl. L. 869, 870-71 (1993). (40.) See supra notes
32-35 and accompanying text. (41.) Lucas v. South Carolina Coastal
Council, 112 S. Ct. 2886, 2894 (1992). (42.) James Madison, in The
Federalist No. 10, said that "the most common and durable source of
factions has been the various and unequal distribution of
property." Quoted in Daniel A. Farber & Philip P. Frickey, Law
and Public Choice: A Critical Introduction 10 (1991). (43.) See, e.g.,
John W. Chapman, Justice, Freedom, and Property, in Property: Nomos XXII
289, 316-317 (J. Roland Pennock & John W. Chapman eds. 1980). (44.)
Thus, in Oregon, where courts have recognized the public's
customary right to use the ocean beaches, constitutional property rights
would be considerably less extensive than in the majority of states
which do not recognize such rights. See, e.g., State ex rel. Thornton v.
Hay, 462 P.2d 671 (Or. 1969) (holding that private landowner could not
interfere with public use of dry sand area of beach because of
longstanding custom of public use); Stevens v. City of Cannon Beach, 835
P.2d 940 (Or. App. 1992), petition for review allowed, 315 Or. 271 (Dec.
22, 1992) (relying on both Thorton and Lucas to hold that a motel
owner's attempt to build a seawall was not a property right taken
by regulation, since the right never existed under the Oregon common law
of customary rights). (45.) Lucas, 112 S. Ct. at 2902 n.18. (46.) On the
remand of Lucas from the Supreme Court, the South Carolina Supreme Court failed to find any state common law basis for the restriction on
Lucas' property and thus remanded to the circuit court only on the
issue of the amount of actual damages sustained by Lucas due to the
temporary taking of his property by deprivation of use. See Lucas v.
South Carolina Coastal Council, 1992 WL 358,097 at *2 (S.C. Nov. 20,
1992) (unpublished opinion). (47.) Lujan v. Defenders of Wildlife, 112
S. Ct. 2130, 2143-45 (1992). See Cass R. Sunstein, What's Standing
After Lujan: Of Citizen Suits, "Injuries," and Article III, 91
Mich. L. Rev. 163 (1992) (criticizing Justice Scalia's
interpretation of the text and history of Article III). Justice Scalia
has been a longstanding proponent of narrowing the scope of judicial
review, restricting congressional ability to confer standing, and
increasing the separation of powers to eliminate judicial protection of
interests that could be protected through the legislative process. See
Antonin Scalia, The Doctrine of Standing as an Essential Element of the
Separation of Powers, 17 Suffolk U. L. Rev. 881 (1983). (48.) Lucas v.
South Carolina Coastal Council, 112 S. Ct. 2886, 2903 (1992) (Kennedy,
J., concurring).

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